(영문) 서울행정법원 2019.5.31. 선고 2017구합56476 판결

The defendant's disposition of returning 2,366,140 won to the plaintiff on December 22, 2016, additional collection disposition of the same amount, and disposition of restricting loans for 82 days shall be revoked, respectively.

Reasons

1. Details of the disposition;

A. The Plaintiff is an employer who operates a child-care center under the trade name of B child-care center (hereinafter referred to as “child-care center of this case”).

B. On December 22, 2016, the Defendant received subsidies for vocational skills development training expenses (hereinafter referred to as “training expenses”) by fraud or other improper means on the ground that the Plaintiff’s training was conducted on commission to C, even though the trainee (child care teachers who are workers of the child care center of this case) did not participate in the training between November 2013 and January 2014, or failed to complete training for at least 80%, the Plaintiff, the employer of the child care center of this case, without verifying the completion of training, on the ground that the Plaintiff was provided with subsidies for training expenses for vocational skills development (hereinafter referred to as “training expenses”) in the order of each of the instant loans (hereinafter referred to as “the instant additional loans”) pursuant to Articles 5(2) and 56(2) and (3) of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 13902, Jan. 27, 2016; hereinafter referred to as “former Vocational Skills Development Act”).

[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

이 사건 어린이집의 보육교사가 C에서 홈패션, 우쿨렐레 강좌 등의 직업능력개발 훈련을 받은 적은 있다. 그런데 C 대표인 D이 권한 없이 이 사건 어린이집 명의의 도장을 사용하여 이 사건 어린이집의 보육교사가 실제로 수료한 직업능력개발 훈련 과정

In addition, the application is complete even when the vocational ability development training is not completed. The Human Resources Development Service of Korea arbitrarily prepared an application for the subsidization of training costs by violating the relevant regulations, and subsequently reviewed the application for subsidization of training costs as above, and ultimately, subsidized training costs as requested by D. As such, D voluntarily prepared an application for subsidization of training costs. As such, D was aware that D had been aware that it was actually a part of the training costs that D had been completed, and the Plaintiff was actually a part of D’s application for subsidization of training costs, and the Plaintiff did not have been a part of D’s illegal act. Therefore, the Plaintiff cannot be deemed to have received training costs by fraud or other improper means. Accordingly, each disposition of this case is not recognized, and thus should

(b) Related statutes;

It is as shown in the attached Form.

1) Criminal punishment, etc. against C Representative D

A) Article 20(1)1 of the former Act on the Development of Vocational Skills provides that "the Minister of Employment and Labor may provide subsidies or loans to employers who conduct vocational skills development training (including training conducted on commission) for expenses incurred therein."

B) According to Article 20(3) of the former Act on the Development of Vocational Skills of Workers and Article 19(3) of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers (amended by Presidential Decree No. 27393, Jul. 26, 2016; hereinafter “former Enforcement Decree of the Act on the Development of Workplace Skills”), matters concerning the subsidization of the above training costs are subject to Article 41, etc. of the Enforcement Decree of the Employment Insurance Act. In light of the language of Article 60(2) of the former Enforcement Rule of the Employment Insurance Act (amended by Presidential Decree No. 28160, Jun. 27, 2017; hereinafter the same shall apply) delegated by Article 41(4) of the former Enforcement Decree of the Employment Insurance Act (amended by Ordinance No. 161, Jul. 21, 2016; hereinafter the same) and the Enforcement Rule (attached Form 58) (hereinafter referred to as “former Enforcement Decree of the Act on the Development of Workplace Skills of Workers”).

C) Furthermore, according to Article 20(3) of the former Development of Vocational Skills Act, Article 19(3) of the former Enforcement Decree of the Employment Insurance Act, Article 41(4) of the former Enforcement Decree of the Employment Insurance Act, and Article 8(1)1 of the former Enforcement Rule of the Employment Insurance Act, in the case of a cluster training for which a worker, who is subject to training, directly finds a trustee training institution and is trained, he/she may receive subsidies for training expenses by recognizing that the relevant worker has been present at least 80% of the training hours and completed the training course, only if he/she has completed the training course.

D) A business owner who operates a child care center pursuant to the above provision may outsource infant care teachers to another training institution for vocational skills development training for infant care teachers at the relevant training institution, and where infant care teachers attend at least 80% of the training hours and completed the training course, the Human Resources Development Service of Korea entrusted with subsidies for training expenses, etc. by the Minister of Employment and Labor shall grant the relevant child care center business owner a subsidy equivalent

E) From May 11, 2013 to October 19, 2014, D, the representative of C, entrusted the vocational skills development training for infant care teachers in Songpa-gu Seoul, Songpa-gu and II, and conducted the training for infant care teachers in infant care centers, such as the main course of production of infant and child care school.

D In conducting vocational skills development training as above, although the facts did not receive in advance training expenses (educational expenses) under the contract for the entrustment of training from child care centers, and the trainees of the above training courses did not attend the training hours at least 80%, they issued a false tax invoice as if they were paid training expenses (educational expenses) and entered them in the attendance book falsely as if they were 80% or more of the attendance rate of trainees, so that employers would be able to receive subsidies for training expenses from the Korean Industrial Manpower Union, and then paid them as training expenses (educational expenses) paid in C. D through this method from May 11, 2013 to October 19, 2014. The Korea Manpower Agency of Human Resources Development paid 86 million won to 86 children of child care centers as subsidies for training expenses, and acquired financial benefits equivalent to the above amount (hereinafter referred to as "the aforementioned provision of subsidies for training expenses") by returning them from employers (hereinafter referred to as "the aforementioned provision of subsidies for training expenses").

F) The Incheon Bupyeong Police Station commenced an investigation against D with respect to the supply of subsidies for false training costs in this case. Ultimately, D was prosecuted for fraud in relation to the supply of subsidies for false training costs in this case, and was sentenced to the suspension of execution in August 17, 2017 from the first instance court (Seoul Central District Court 2016Da6007) to the appellate court (Seoul Central District Court 2016Do4885) on August 17, 2017, and the said judgment became final and conclusive on the 25th of the same month (hereinafter referred to as the “relevant criminal case”).

2) Circumstances, etc. of the instant disposition

A) The Human Resources Development Service of Korea received an application for subsidies for training expenses (attached Form 58 of the former Enforcement Rule of the Employment Insurance Act, and each of the above applications is referred to as “application for subsidies for training expenses of each of the instant applications”) to the effect that “nick care teachers of the instant childcare center have undergone vocational skills development training in C for four times.” The date on which the application for subsidies for training expenses of each of the instant childcare center was prepared shall be the date on which the application was filed shall be January 12, 2013, 1, 2013, 12, 18, 2013, 12, 18, 2014, 21, 2014, and 5 March 21, 2014; the name of the applicant for each of the instant applications for subsidies for training expenses of the instant childcare center shall be the Plaintiff; and

나) 한편 이 사건 각 훈련비용 지원 신청서에 의하면, 이 사건 어린이집 보육교사 8명이 2013. 11.경부터 2014. 1.경 사이에 C에서 영유아교구제작 주말특강, 톨페인팅 주말특강, 홈패션 초급, 우쿨렐레 초급 등 총 68개 과정의 직업능력개발 위탁훈련을 수료한 것으로 기재되어 있다. 한국산업인력공단은 이 사건 각 훈련비용 지원 신청서 기재와 같이 이 사건 어린이집 보육교사들이 68개 과정의 직업능력개발 위탁훈련을 수료한 것으로 인정하고 5차례(2013. 12. 13., 2013. 12. 26., 2014. 1. 24. 두 차례, 2014. 3. 14.)에 걸쳐 합계 3,424,770원을 이 사건 어린이집 측 계좌에 훈련비용 지원금으로 각 입금해주었으며, 원고는 3차례에 걸쳐 위와 같이 입금 받은 돈과 동일한 액수의 돈을 C 측 계좌에 각 입금해주었다.

다) 피고는 이 사건 관련 형사사건의 수사기관으로부터 이 사건 허위 훈련비용 지원금 수급 내역에 이 사건 어린이집이 지급받은 훈련비용 지원금도 포함되어 있다는 취지의 통보를 받고 조사에 착수하였다(이하 '이 사건 조사'라 한다). 원고는 이 사건 조사 과정에서 '이 사건 각 훈련비용 지원 신청서의 내용과는 달리, 이 사건 어린이집 보육교사 F, G, H, I, J이 C에서 7개 과정(홈패션 초급, 우쿨렐레 초급)만을 위탁훈련 받을 수 있도록 허락하였고, 이들은 해당 훈련 과정을 모두 수료하였다. 이 사건 각 훈련비용 지원 신청서에 기재된 나머지 훈련 과정은 위탁훈련을 받은 사실조차 없고 C측에서 이 사건 어린이집 명의와 도장을 도용한 것이다.'는 취지의 진술을 하였다.

On the other hand, in the course of the investigation of this case, C representative D made a statement to the effect that " While the head of a child-care center is unreasy, C applied for subsidies for training expenses on his/her behalf with his/her consent, it does not abuse the official seal of the child-care center."

D) Based on the relevant statements and attendance records of the Plaintiff and the instant child care teachers, the Defendant determined that the instant child care teachers were unlawfully paid training expenses even if the instant child care teachers did not participate in the training or did not complete training at least 80% of the total amount of training but failed to meet the completion standards, and accordingly, the instant disposition was rendered.

3) The progress of the Plaintiff’s accusation case against D

A) The Plaintiff filed a complaint with the Seoul Young Military Police Station with the purport that “C Representative D forged the official seal of the Child Care Center of this case and forged the application for subsidization of each of the instant training costs under the Plaintiff’s name (the crime of forging private documents) by using forged official seal (the crime of forging private documents), and that the application for subsidization of each of the instant training costs that forged as above was exercised (the crime of uttering of falsified Private Documents).”

B) On February 28, 2018, the Plaintiff and D were investigated as a substitute at the Seoul Yeongdeungpo Police Station, and the Plaintiff could apply to the Human Resources Development Service of Korea for training upon completion of the “education course for vocational skills development.” The Plaintiff subsequently agreed with D to send the money received to C as training expenses (training expenses). However, the Plaintiff stated to the effect that the right to prepare the application for each of the instant training expenses is not less than delegated to D.”

On the other hand, in the police investigation process, D stated that "in the application form for each of the training costs in this case, there was the plaintiff's explicit consent on the part for which the application for subsidies for training costs was not actually conducted," but it did not later express consent, but the plaintiff did not return the subsidies for training costs received from the Korea Industrial Manpower Agency, so it was known that there was an implied consent."

C) On June 29, 2018, an investigator in charge of the Seoul Young Military Police Station prepared an investigation report stating that “The purpose of this case’s childcare center name affixed to the application form for each of the instant training expenses and the official seal of the instant childcare center actually used by the Plaintiff is highly likely to be the same seal and that the results of the national scientific investigation institute’s appraisal.”

D) On July 31, 2018, the public prosecutor of the Seoul Southern District Public Prosecutor's Office: (a) imposed a disposition of forging the official seal of the child-care center of this case on the ground that "no evidence exists to regard the charge of forging the official seal of the child-care center of this case"; and (b) as to the crime of forging private documents and the crime of uttering, it is difficult to deem that the Plaintiff permitted D to receive subsidies for false training expenses of this case, which can be subject to administrative disposition and criminal punishment despite the benefit of acquiring the subsidies for training expenses received from the Human Resources Development Service of Korea (on the basis of delivery of the subsidies for training expenses received from the Human Resources Development Service of Korea to D), it is difficult to deem that the Plaintiff comprehensively delegated the payment of subsidies for false training expenses of this case to D; and (c) it is deemed that D comprehensively stated the false contents in the application for subsidies for each training expense of this case beyond the scope delegated by the Plaintiff. It is recognized that the prosecution is postponed on the ground that "the prosecution is suspended in consideration of all the circumstances."

4) Results of this Court’s appraisal

The court appraiser K is a child care center of this case on which the application for each of the training costs of this case is affixed.

As a result of the appraisal of the official seal in the name of the child-care center of this case where the plaintiff had been continuously used, both of them expressed their opinions to the effect that they are presumed to be similar in the shape of each other. [Grounds for recognition] The entries and images of Gap's 1 through 3, Eul's 1 through 7, 10, 11, and 13 through 15, and the result of the appraisal by the court appraiser K, the purport of the entire pleadings.

D. Determination1)

1) Relevant legal principles

Sanction against a violation of administrative laws is a sanction that leads to the objective fact that is a violation of administrative laws and regulations in order to achieve administrative purposes. Thus, it is not a real offender, but a person prescribed as a person in charge under the laws and regulations, and barring any special circumstance, it may be imposed without intention or negligence on the violator (see, e.g., Supreme Court Decision 2012Du1297, May 10, 2012). Such special circumstance refers to a case where there is a justifiable reason that does not lead to the failure of the violator to perform his/her duties (see, e.g., Supreme Court Decision 2002Du5177, Sept. 2, 2003).

2) Determination

A) As to each disposition of this case, legal person responsible

(1) Article 4(2) of the former Act on the Development of Vocational Skills provides that a business owner shall conduct workplace skill development training for workers, participate in workplace skill development training, and make efforts to create conditions for workplace skill development training, such as granting leave to workers for workplace skill development or appointing persons in charge of workplace skill development training (Article 4(2)), and that "the Minister of Employment and Labor may provide subsidies or loans to business owners who conduct workplace skill development training (including those conducted on commission)" (Article 20(1)1). In addition, Article 20(3) of the former Act on the Development of Vocational Skills, Article 19(3) of the former Enforcement Decree of the Employment Insurance Act, Article 41(4) of the former Enforcement Decree of the Employment Insurance Act, and Article 60(2) of the former Enforcement Rule of the Employment Insurance Act provide that business owners shall apply for subsidies for training

As such, the subject of vocational skills development training for workers, the subject of subsidies for training expenses, and the subject of application for subsidies for training is the business owner, which is also the same as vocational skills development training conducted in the way of "entrusted training".

(2) In addition, Article 55 (2) 1 and Article 56 (2) and (3) of the former Development of Vocational Skills require "business owner" to take measures to restrict loans, to return the subsidies, and to additionally collect them where the "business owner has received subsidies for training costs by fraud or other improper means."

(3) Ultimately, in each of the dispositions of this case, it is evident that the legal officer is the Plaintiff, who is the employer of the instant childcare center.

B) Determination as to the legitimacy of each of the dispositions of this case

(1) In light of the Plaintiff in the instant accusation case and C representative D’s statements, D’s statements in the instant investigation process, and criminal punishment against D in the instant relevant criminal case, it is recognized that D applied for subsidies for training costs in question by entering the application for subsidies for training costs in the instant case as if D had completed 58 training courses not actually implemented in a normal manner. Moreover, the fact that the Human Resources Development Service of Korea deposited the subsidies for training costs in the instant 58 training course in accordance with the application for subsidies for training costs in each of the instant case, as seen earlier.

(2) If so, the Plaintiff, a business owner of the instant childcare center, using C representative D’s “false or other unlawful means,” can be deemed to have received subsidies for training expenses related to the said 58 training courses. However, in order to be lawful for each of the instant dispositions, the instant dispositions by C Representative D’s above act should be attributed to the Plaintiff, a legal person responsible for each of the instant dispositions (the instant childcare center’s employer).

Since the subject of application for subsidies for training costs is the plaintiff who is the business owner, the relevant work is the plaintiff's business, and if the plaintiff has entrusted D with the business of applying for subsidies for training costs, not only the profit accrued from the delegation but also the risk is the principle that the plaintiff bears the burden.

Therefore, even if D received subsidies for training costs by arbitrarily preparing an application for subsidies for each of the instant training costs in excess of the scope of delegation, there is sufficient room to evaluate that the Plaintiff, who is the business owner of the instant childcare center, is paid subsidies for training costs by fraudulent or other unlawful means (Provided, That it can be recognized that there is a justifiable reason not to cause the Plaintiff, who is a legal responsible manager, to neglect his/her duty, by comprehensively taking into account the content of the act performed beyond the scope of delegation, the degree of excess of the scope of delegation, the circumstance beyond the scope of delegation, and the degree

(3) In light of the following circumstances, whether the Plaintiff was aware of the fact that the Plaintiff included 58 training courses that had not been actually implemented in the application form for each of the instant training costs, it is reasonable to deem that the Plaintiff delegated the Plaintiff’s duties to apply for subsidies for training expenses, which is his/her duties, and that the Plaintiff either directly affixed his/her child care center seal or affixed his/her seal upon obtaining approval from the Plaintiff in the application form for subsidies for training expenses of each of the instant case prepared by D. Therefore, insofar as D, who received subsidies from the Plaintiff as delegated by the Plaintiff, received subsidies by fraud or other improper means, each of the instant dispositions can be taken against the Plaintiff, who is a legal manager, regardless of whether the Plaintiff was intentional or negligent.

(A) As seen earlier, the application for subsidies for training costs is basically the Plaintiff’s business, and according to the Plaintiff’s statement in the instant complaint case, the Plaintiff seems to have been well aware of such fact.

(B) Nevertheless, D, other than the Plaintiff, prepared an application for subsidization of each of the instant training costs, and the subsidies for training costs were deposited in the account of the instant childcare center in accordance with the application for subsidization of each of the instant training costs.

As seen earlier, when the Plaintiff was well aware that the business of applying for subsidies for training costs is the business owner’s own business, the Plaintiff seems to have paid the relevant amount to the C account without raising any objection to the fact that the subsidies for training costs were paid, although he did not have applied for subsidies for training costs.

In addition, the application for subsidies for each of the training costs of this case includes childcare teachers of this case, and if the Plaintiff did not delegate the work of applying for subsidies for training costs to D, it is reasonable to deem that the Plaintiff delegated the work of applying for subsidies for training costs to D, in addition to the fact that the Plaintiff should have directly applied for subsidies for training costs in relation to the training process that has been actually completed.

(C) Since both the court appraiser and the national science investigation institute have expressed the result of the appraisal that the name of the child care center of this case affixed with the application form for each of the training costs of this case is identical to that of the child care center of this case actually used by the plaintiff, D. Accordingly, the child care center of this case in this case

No one cannot be deemed to have affixed a seal on the application form for each of the training costs of this case by forging the official seal in the name, and the application form for each of the training costs of this case shall be deemed to have affixed the official seal of the

In addition, the plaintiff asserts that he had strictly managed the official seal of the child care center of this case. Since there is no reason to recognize that D had affixed the official seal of the child care center of this case to the application form for each of the training expenses of this case since it was four times in four times in the near future, it is reasonable to deem that D had directly affixed the official seal of the child care center of this case, or D had obtained approval from the plaintiff, on the application form for each of the training expenses of this case prepared by D entrusted D with the application for subsidies for training expenses of this case (the written decision of non-prosecution in the complaint case of this case also did not recognize the fact that D prepared the application form for each of the training expenses of this case beyond the scope of the plaintiff's delegation, nor did it be determined that D did not fully delegate

(4) On the other hand, if there are justifiable grounds that are not attributable to the Plaintiff, who is a person in charge of statutory duty, each of the dispositions in this case may be deemed to be unlawful, but in light of the following circumstances, which can be known by adding up the aforementioned facts and the purport of the entire arguments, it cannot be deemed that there was a justifiable reason that does not cause the Plaintiff to neglect the duty.

(A) The Plaintiff, an employer, is the subject of vocational skills development training for workplace childcare teachers who are workers, and is the subject of receiving subsidies for training expenses. Although it was delegated to D, the Plaintiff was responsible for personally confirming whether the instant childcare center childcare teachers meet the completion standards to receive subsidies for training expenses, prior to applying for subsidies to the Human Resources Development Service of Korea by affixing the official seal of the instant childcare center on the application for each of the instant training expenses.

(B) Even though the instant childcare teacher was included in the application for each of the instant training costs, 58 training courses were included in the instant application for each of the instant training costs, and each of the instant training costs included a list of trainees (including childcare teachers of the instant childcare center other than F, G, H, and I permitted the Plaintiff to complete the commissioned training), training course name, the number of completed training courses, and the number of applications for subsidies. Therefore, if the Plaintiff confirmed that he paid early payment due attention, it would have sufficiently known that each of the instant training costs of this case was falsely prepared. Nevertheless, without properly verifying and supervising the fact, the Plaintiff’s application for each of the instant training costs of this case was sealed four times without attaching the official seal of this case.

(C) Furthermore, the Plaintiff’s subsidies for training costs up to 3,424,770 won. Since the Plaintiff asserted that the training process allowed the instant childcare teacher to complete by himself is only seven training courses, it would have been sufficiently recognizable that, if the Plaintiff paid little attention, the subsidies for training costs paid in comparison with the actual training process would have been excessive. Nevertheless, without any particular doubt, the Plaintiff received KRW 3,424,70 for training costs, and delivered them to D.

(D) As alleged by the Plaintiff, even if the Human Resources Development Service of Korea reviews the application for subsidies for each of the instant training costs in violation of the relevant provisions in the course of paying subsidies for training costs, the application for subsidies for each of the instant training costs is stamped with the official seal of the childcare center of this case, and the false tax invoice is attached to the false tax invoice, unlike the Plaintiff or D who is a party to the workplace skill development project, it is not easy for the Human Resources Development Service of Korea to know that the application for subsidies for each of the instant training costs was false, and thus, it is difficult to deem that the above circumstance alleged by the Plaintiff

E. Sub-committee

Ultimately, the Plaintiff may be deemed to have received subsidies for training costs by false and other unlawful means, and there is a justifiable reason not to be attributable to the Plaintiff, who is a legal responsible manager, to the Plaintiff. Therefore, each of the dispositions of this case on the same premise is lawful.

3. Conclusion

Therefore, all of the plaintiff's claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges

Judgment of the presiding judge;

Judges Kang Jae-sung

Judges Lee Gyeong-soo

Note tin

1) The period of sanctions determined in the instant disposition of restriction on the provision of subsidies and loans (from December 23, 2016 to March 14, 2017) was exceeded, but workers’ ability to work was insignificant.

Article 22 [Attachment Table 6-2] 1. A.3 of the Enforcement Rule of the Act on the Development of History, the history of which is subject to a restriction on financing, increases the number of unfavorable measures later.

Since this part of the disposition is lawful, the decision on the merits is also made on the legitimacy of the disposition (Supreme Court Decision 2006Du1312 Decided January 11, 2007).

See Supreme Court Decision, etc.)